State v. Jeffrey S. Wein

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 7, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2021AP1696 Cir. Ct. Nos. 2020FO335
2020FO336
2021AP1697 2020FO337
2021AP1698

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2021AP1696

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY S. WEIN,

DEFENDANT-APPELLANT.

NO. 2021AP1697

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY S. WEIN,
Nos. 2021AP1696
2021AP1697
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DEFENDANT-APPELLANT.

NO. 2021AP1698

IN THE MATTER OF THE REFUSAL OF JEFFREY S. WEIN:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY S. WEIN,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Waukesha
County: JENNIFER DOROW, Judge. Affirmed.

¶1 GUNDRUM, P.J.1 Jeffrey S. Wein appeals from judgments of
conviction for unlawfully failing to comply with federal boat lighting
requirements, operating a boat while intoxicated, and refusing to submit to a
breath alcohol test. He contends the trial court erred in finding him guilty of each
offense because the evidence did not support the court’s finding that he had
operated the boat. For the following reasons, we disagree and affirm.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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Background

¶2 Wein does not dispute that he was under the influence of an
intoxicant when his boat was stopped by wardens. As he states in his appellate
brief, “the sole issue” in this appeal is “was there clear, convincing, and
satisfactory evidence to find that Mr. Wein operated the motorboat?” We
conclude that there was.

¶3 The trial in this case was held before the trial court without a jury,
and the relevant evidence from that trial is as follows.

¶4 A Wisconsin Department of Natural Resources Conservation
Warden Supervisor, Andrew Starch, testified that part of his training was in the
proper use of a flashlight at nighttime “to illuminate the operator of the boat so we
can identify who the operator is at the time of [a] stop” and agreed that this
included “situations where there are multiple people on board.” He added that
“our main goal [is] to identify the operator of the boat.”

¶5 On July 17, 2020, at approximately 10:15 p.m., Starch was in a
patrol boat with another warden, Mitchell Groenier, looking for boating violations.
They observed a pontoon boat operating in a channel at slow speed with its
docking lights illuminated. Determining this to be a law violation, the wardens
decided to stop the boat. Starch shined his “LED high luminescent flashlight,”
which is “very bright,” on the boat and “observed [Wein] in the captain’s chair of
the boat, as well as numerous other occupants on the boat.” Starch told Wein
“[t]hat the boat needed to be put in neutral,” and then the wardens came up to the
operator side of the boat, making contact with the occupants.

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¶6 Starch testified that he never lost sight of nor moved his flashlight
away from the area of the captain’s chair. Wein was the first person Starch
communicated with because “he was the operator and later found out he was the
registered owner.” Approaching the boat, Starch detected a strong odor of alcohol
coming from the boat generally, and when he spoke with Wein, Starch specifically
identified that odor as also coming from him.

¶7 Starch expressed that while he never observed Wein with his hands
on the steering wheel, “when somebody’s in that [captain’s] chair, it’s not possible
for someone else to operate the boat.” Starch did not recall ever seeing anyone
else on the boat reaching over and handling the steering wheel. Starch further
testified that when he was later on the way to the “boat shed” with Wein for
“Intoximeter testing,” Wein “repeated numerous times … that he wasn’t a threat to
anyone or the public because he was driving his boat at such a slow speed in the
channel, and he wasn’t threatening anyone.” (Emphasis added.)

¶8 Warden Groenier testified next. He drove the boat he and Starch
were on as they approached Wein’s boat. After Starch illuminated Wein’s boat
with his flashlight, Groenier turned on the emergency lights to execute the stop
and moved the patrol boat alongside Wein’s boat. Groenier held the two boats
together while Starch focused on the investigation. Groenier did observe that the
same person who was in the captain’s chair when Starch initially illuminated the
boat remained in that chair throughout the investigation. Groenier identified that
person as Wein.

¶9 Several witnesses testified for Wein. A friend of Wein’s,
Karl Rekowski, testified that at the time the wardens performed the stop, he
(Rekowski) was the one driving Wein’s boat and that Wein was at the front of the

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boat talking with his wife. Rekowski stated that he was driving the boat “so that
[Wein] could ask [his wife] … if we should go to the Hideaway or … go home.”
He confirmed that Wein had “determined that he could not talk to [his wife] while
driving the boat … [b]ecause she was sitting in the front of the boat” and the
person “driving the boat cannot talk to someone in the front of the boat” because
“[i]t was loud. We had music on.” (Emphasis added.) So, Rekowski “agreed to
drive the boat.”

¶10 Another friend of Wein’s testified that he was on the boat that night
and that Rekowski, not Wein, was driving Wein’s boat at the time of the stop.
This witness acknowledged that despite observing the wardens conduct an OWI
investigation of Wein, he did not indicate to the wardens that Wein had not been
the one operating the boat. He testified to consuming alcoholic beverages both
prior to and during his time on the boat that evening.

¶11 Three additional witnesses testified that they were on the boat with
Wein at the time the wardens performed the stop and that Rekowski was driving
the boat at that time. Without providing specifics, one of the witnesses confirmed
that either he or someone else “ma[d]e the wardens … aware that they had the
wrong person.” Another witness indicated that as the wardens pulled away from
Wein’s boat with Wein, this witness and others “yell[ed] across the water” to the
wardens that they “had the wrong guy” and that Wein “wasn’t driving the boat.”
All three of the witnesses testified to drinking alcoholic beverages prior to being
stopped by the wardens, with one admitting to consuming “probably 12 to 16”
such beverages.

¶12 Wein’s wife also testified that Rekowski was driving the boat when
the wardens made contact and that she and Wein were talking at the time.

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¶13 Wein himself testified he was not driving his boat at the time the
wardens made contact but was in the front of the boat talking with his wife while
Rekowski drove the boat. Wein did acknowledge driving the boat earlier, but
stated that he “was not driving the boat in that channel when they pulled us over,
no. I was up in the front talking to my wife.” (Emphasis added.)

¶14 Following the presentation of evidence, the trial court credited the
wardens’ testimony that Wein was in the operator’s chair—“the captain’s chair”—
as the boat was in motion and at the time they made contact with his boat. The
court further pointed to an audio recording that was played at trial, in which, as the
court paraphrased it, Wein stated to the wardens, “[W]ell, what are the options
here? I’m not a criminal. Why can’t my wife just operate the boat?” The court
found those to be “statements … of a guilty conscience. They coincide with what
this warden testified to about you putting that motorboat into neutral.” The court
found that Wein was “clearly” in the captain’s chair operating the boat when the
wardens made contact. The court specifically believed the testimony of Starch
“over the testimony of people who had been drinking that day to varying degrees.”
It found Starch’s testimony and Wein’s statements on the recording “to be the
most reliable evidence.” The court found that the State had met its burden of
proof by clear, convincing and satisfactory evidence that Wein was “the operator
of the motorboat and that at the time that you operated the motorboat, you were”
intoxicated.

¶15 Wein appeals.

Discussion

¶16 Because Wein stipulated that he was intoxicated at the time the
wardens made contact, the State was only required to prove by clear, satisfactory,

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and convincing evidence that Wein had operated his boat while in that intoxicated
condition. See WIS. STAT. § 345.45. It proved this.

¶17 On a challenge to the sufficiency of the evidence, we “may not
reverse a conviction unless the evidence, viewed most favorably to the state and
the conviction, is so insufficient in probative value and force that it can be said as
a matter of law that no trier of fact, acting reasonably, could have found” that the
appropriate burden of proof had been met. State v. Poellinger, 153 Wis. 2d 493,
501, 451 N.W.2d 752 (1990).

¶18 We will not upset a trial court’s findings of fact unless they are
clearly erroneous. WIS. STAT. § 805.17(2). As we have stated,

“[i]t is well settled that the weight of the testimony and the
credibility of the witnesses are matters peculiarly within the
province of the trial court acting as the trier of fact”
because the trial court has a superior opportunity “to
observe the demeanor of witnesses and to gauge the
persuasiveness of their testimony.”

Tang v. C.A.R.S. Prot. Plus, Inc., 2007 WI App 134, ¶19, 301 Wis. 2d 752, 734
N.W.2d 169 (alteration in original; citations omitted). It is also for the trial court,
not this court, “to resolve conflicts in the testimony, and we review the evidence in
the light most favorable to the findings made by the trial court.” Id. (citation
omitted). When more than one inference can reasonably be drawn from the
evidence, the inference which supports the trier of fact’s verdict must be the one
followed on review unless the evidence is incredible as a matter of law. Id.
Whether the evidence presented at trial ultimately is sufficient to support the
conviction is a question of law we review de novo. State v. Booker, 2006 WI 79,
¶12, 292 Wis. 2d 43, 717 N.W.2d 676. On appeal, however, we are directed to

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look to the record for evidence supporting the verdict. See Poellinger, 153
Wis. 2d at 501.

¶19 As noted, we heavily defer to the trial court’s credibility
determinations and weight given to evidence. Here, the court clearly believed and
credited Starch’s testimony that Wein was in the operator’s seat as the boat was
moving and the wardens made contact with it, i.e., that Wein was operating the
boat at that time. Furthermore, with the court finding Starch a believable witness,
we note his unrefuted testimony that as he was taking Wein to the boat shed, Wein
“repeated numerous times … that he wasn’t a threat to anyone or the public
because he was driving his boat at such a slow speed in the channel, and he wasn’t
threatening anyone.” (Emphasis added.) The court’s finding that Wein was
operating the boat is certainly supported by the evidence.

¶20 Furthermore, even if the trial court had credited Rekowski’s
testimony, a reasonable inference from that testimony is that Wein was operating
the boat just moments before the wardens turned on their lights—meaning Wein
was operating it in the same intoxicated condition but just had exited the captain’s
chair moments before contact with the wardens.

¶21 Rekowski testified that when the wardens turned on their emergency
lights, Wein was at the front of the boat talking with his wife. Rekowski stated
that the reason why he (Rekowski) was driving the boat at the time the wardens
made contact “was so that [Wein] could ask [his wife] … if we should go to the
Hideaway or … go home.” Rekowski confirmed that Wein had “determined that
he could not talk to [his wife] while driving the boat … [b]ecause she was sitting
in the front of the boat” and whoever is driving the boat “cannot talk to someone
in the front of the boat” because “[i]t was loud. We had music on.” Because of

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this, at that time, Rekowski “agreed to drive the boat.” The only reasonable
inference from this testimony is that Wein had been operating the boat just
moments before the wardens made contact but that Rekowski took over operating
so that Wein could go up to the front of the boat to speak with his wife. Again,
this can only mean that Wein was operating the boat while in the same intoxicated
state as observed through the investigation. Furthermore, this view of the
evidence is completely consistent with Wein’s own testimony at trial, in which he
stated that he “was not driving the boat in that channel when they pulled us over,
no. I was up front talking to my wife.” (Emphasis added.)

¶22 But, we need not even concern ourselves with this reasonable
inference from Rekowski’s (and Wein’s) testimony. Considering the evidence in
the light most favorable to the State and the conviction, as we must, the evidence
that Starch (and Groenier) observed Wein in the captain’s chair as the boat was
being operated is all that is necessary. But, more than that, Wein made
inculpatory statements “repeat[ing] numerous times … that he wasn’t a threat to
anyone or the public because he was driving his boat at such a slow speed in the
channel.” (Emphasis added.) The court found Starch’s testimony credible, and
that testimony carries the day. Additionally, the trial court correctly noted that
Wein’s recorded statement to the wardens––“[W]ell, what are the options here?
I’m not a criminal. Why can’t my wife just operate the boat?”––indicated his
consciousness of his guilt.

¶23 Wein bears the burden on appeal to convince us the trial court erred.
See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381.
He has not met this burden.

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By the Court.—Judgments affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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